Ethridge, J.,
delivered the opinion of the court.
The appellant was indicted for receiving stolen goods from named persons, knowing them to have been stolen, the goods being described in the indictment, and the ownership properly alleged, and was placed upon trial therefor. The state proved that the goods were stolen. After the theft of the goods, a search warrant was sued out, the defendant’s home was searched, and the stolen goods found therein, which was the only evidence on the part of the state to connect the appellant with the crime charged against him. O'n cross-examination of one of the witnesses for the state the defendant’s attorney asked the following question:
"State whether or not he denied having any knowledge of the property being there. (Objected to. Sustained. Exception.)”
The defendant testified in his own behalf, and denied having any knowledge of the goods being in his house or possession prior to the time of the search. He testified that two boys, who were the parties to the indictment alleged stole the goods, spent the night in his home; that it was customary for them to spend the night there occasionally, as one of the hoys was related to his (the appellant’s) wife; that sometimes the appellant would not get upl when they came after he retired, but that they would wake him up, and a lot of times he would go right back to sleep; that sometimes the boys would go to bed right off, and sometimes they would remain up for some time; that on the morning after they spent the night on the said occasion, after breakfast, he went away to Booneville. He was asked the following-questions :
“Q. Do you know whether or not they put that property in that loft that night?. A. I don’t think they did.
“Qj. Tell what you know about it. A. Well, they come in there. I don’t think they sat up long that night. I don’t think they did. They went in to bed pretty soon when they come in there, I think. They were in there so much I didn’t pay much attention to it. They would come in there when we were not at home and stay all night, and when we were at home and stay all night.
•‘Q. Now, since that property was put in there, John, have those boys ever told you who put that property up there? (Objection. Sustained. Exception.)
‘ ‘ Q. Did you have a conversation with Lee Davis and Herman Duncan about when they put it up there? (Objection. Sustained. Exception.)
‘‘Q. Do you know whether or not Herman Duncan and Lee Davis ever pleaded guilty to stealing- that property? (Objection. Sustained. Exceptions.)”
Among- other instructions given for the state was the following:
“The court charges the jury for the state that, if you believe from the evidence beyond a reasonable doubt that certain goods, the property of Martin Pranks, and of the value of twenty-five, dollars or more, were feloniously stolen, and that these goods a short time thereafter were found in the possession of the defendant, and that such possession is not satisfactorily explained by the evidence,'then this is a circumstance strongly indicative of the guilt of the defendant, and creates an inference or presumption which would authorize and warrant the jury in finding the defendant guilty as charged in the indictment. ’ ’
This instruction is assigned for error.
The defendant requested, and was refused, the following instruction:
“The court instructs the jury for the defendant that the finding of the stolen property at the home of defendant raises no presumption of guilt against him, but that, in spite of the finding of the stolen property at the home of defendant, the law still presumes him to be innocent of the crime charged against him, and the burden is still on the,state to prove beyond every reasonable doubt, and to a moral certainty, that the defendant is guilty as charged, and if, after considering the evidence for both the state and the defendant, there arises in your minds a reasonable probability that the defendant is innocent, then there is a reasonable doubt as to his guilt, and under your oaths you must return a verdict of not guilty.”
The defendant did not get an instruction that explained to the jury that all that the defendant had to do when stolen goods were found in his possession was to give a reasonable explanation of such possession, and if such reasonable explanation raised a reasonable doubt as to his guilt, that he was entitled to an acquittal.
It will be noted from the statement of facts that the only proof the state had to show guilt was the finding
of the goods in his house, under the circumstances stated, and that he denied on the witness stand his knowledge of the goods being in his house prior to their being found by the search warrant. We think the instruction given the state places too great a burden upon the defendant that all that was required was that the jury entertain a reasonable doubt as to his guilt. In other words, the defendant was only under the duty of giving a reasonable explanation — not one entirely satisfactory to the jury. In 8 Enc. of Evidence, at page 113, the rule is stated as follows:
“But the explanation need not be satisfactory; that is requiring too high a degree of. proof from the accused. It is only necessary for him to raise a reasonable doubt that he came by the property as charged.; and an instruction requiring him to overcome the presumption arising from such possession by a preponderance of evidence is erroneous.”
In the case of
Y. & M. V. R. Co.
v.
Messina,
109 Miss. 143, 67 So. 963, the court, construing an instruction in a ease involving an action for injuries caused by the derailment of a railroad train being run at an excessive rate of speed, held that an instruction to find for the plaintiff, if all the evidence left it doubtful as to whether defendant had met the burden placed on it by the
prima-fade
evidence statute (Code 1906, section 1985, Heming]way’s Code, section 1645), was erroneous, as placing on defendant a greater burden than the law required it to sustain. In the opinion the court said:
“The instruction based upon the statute was a little too stout in some particulars, one of which is that the jury should not have been told, £if all the evidence leaves it .doubtful,’ as to whether the defendant has not met the burden. As recently pointed out by this court in
Gentry
v.
Gulf & Ship Island R. Co.
[109 Miss. 66.] 67 So. 849, this language places a greater burden upon the defendant than the law requires it to sustain. In order
to meet the
prvma-facie
case made by the proof that the injury was inflicted by a running train, it is not necessary for the defendant to do more than to disclose the facts, and if this is done the liability of defendant depends upon the facts and not upon the statutory presumption. ’ ’
In the
Gentry case, subirá,
it was said:
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Ethridge, J.,
delivered the opinion of the court.
The appellant was indicted for receiving stolen goods from named persons, knowing them to have been stolen, the goods being described in the indictment, and the ownership properly alleged, and was placed upon trial therefor. The state proved that the goods were stolen. After the theft of the goods, a search warrant was sued out, the defendant’s home was searched, and the stolen goods found therein, which was the only evidence on the part of the state to connect the appellant with the crime charged against him. O'n cross-examination of one of the witnesses for the state the defendant’s attorney asked the following question:
"State whether or not he denied having any knowledge of the property being there. (Objected to. Sustained. Exception.)”
The defendant testified in his own behalf, and denied having any knowledge of the goods being in his house or possession prior to the time of the search. He testified that two boys, who were the parties to the indictment alleged stole the goods, spent the night in his home; that it was customary for them to spend the night there occasionally, as one of the hoys was related to his (the appellant’s) wife; that sometimes the appellant would not get upl when they came after he retired, but that they would wake him up, and a lot of times he would go right back to sleep; that sometimes the boys would go to bed right off, and sometimes they would remain up for some time; that on the morning after they spent the night on the said occasion, after breakfast, he went away to Booneville. He was asked the following-questions :
“Q. Do you know whether or not they put that property in that loft that night?. A. I don’t think they did.
“Qj. Tell what you know about it. A. Well, they come in there. I don’t think they sat up long that night. I don’t think they did. They went in to bed pretty soon when they come in there, I think. They were in there so much I didn’t pay much attention to it. They would come in there when we were not at home and stay all night, and when we were at home and stay all night.
•‘Q. Now, since that property was put in there, John, have those boys ever told you who put that property up there? (Objection. Sustained. Exception.)
‘ ‘ Q. Did you have a conversation with Lee Davis and Herman Duncan about when they put it up there? (Objection. Sustained. Exception.)
‘‘Q. Do you know whether or not Herman Duncan and Lee Davis ever pleaded guilty to stealing- that property? (Objection. Sustained. Exceptions.)”
Among- other instructions given for the state was the following:
“The court charges the jury for the state that, if you believe from the evidence beyond a reasonable doubt that certain goods, the property of Martin Pranks, and of the value of twenty-five, dollars or more, were feloniously stolen, and that these goods a short time thereafter were found in the possession of the defendant, and that such possession is not satisfactorily explained by the evidence,'then this is a circumstance strongly indicative of the guilt of the defendant, and creates an inference or presumption which would authorize and warrant the jury in finding the defendant guilty as charged in the indictment. ’ ’
This instruction is assigned for error.
The defendant requested, and was refused, the following instruction:
“The court instructs the jury for the defendant that the finding of the stolen property at the home of defendant raises no presumption of guilt against him, but that, in spite of the finding of the stolen property at the home of defendant, the law still presumes him to be innocent of the crime charged against him, and the burden is still on the,state to prove beyond every reasonable doubt, and to a moral certainty, that the defendant is guilty as charged, and if, after considering the evidence for both the state and the defendant, there arises in your minds a reasonable probability that the defendant is innocent, then there is a reasonable doubt as to his guilt, and under your oaths you must return a verdict of not guilty.”
The defendant did not get an instruction that explained to the jury that all that the defendant had to do when stolen goods were found in his possession was to give a reasonable explanation of such possession, and if such reasonable explanation raised a reasonable doubt as to his guilt, that he was entitled to an acquittal.
It will be noted from the statement of facts that the only proof the state had to show guilt was the finding
of the goods in his house, under the circumstances stated, and that he denied on the witness stand his knowledge of the goods being in his house prior to their being found by the search warrant. We think the instruction given the state places too great a burden upon the defendant that all that was required was that the jury entertain a reasonable doubt as to his guilt. In other words, the defendant was only under the duty of giving a reasonable explanation — not one entirely satisfactory to the jury. In 8 Enc. of Evidence, at page 113, the rule is stated as follows:
“But the explanation need not be satisfactory; that is requiring too high a degree of. proof from the accused. It is only necessary for him to raise a reasonable doubt that he came by the property as charged.; and an instruction requiring him to overcome the presumption arising from such possession by a preponderance of evidence is erroneous.”
In the case of
Y. & M. V. R. Co.
v.
Messina,
109 Miss. 143, 67 So. 963, the court, construing an instruction in a ease involving an action for injuries caused by the derailment of a railroad train being run at an excessive rate of speed, held that an instruction to find for the plaintiff, if all the evidence left it doubtful as to whether defendant had met the burden placed on it by the
prima-fade
evidence statute (Code 1906, section 1985, Heming]way’s Code, section 1645), was erroneous, as placing on defendant a greater burden than the law required it to sustain. In the opinion the court said:
“The instruction based upon the statute was a little too stout in some particulars, one of which is that the jury should not have been told, £if all the evidence leaves it .doubtful,’ as to whether the defendant has not met the burden. As recently pointed out by this court in
Gentry
v.
Gulf & Ship Island R. Co.
[109 Miss. 66.] 67 So. 849, this language places a greater burden upon the defendant than the law requires it to sustain. In order
to meet the
prvma-facie
case made by the proof that the injury was inflicted by a running train, it is not necessary for the defendant to do more than to disclose the facts, and if this is done the liability of defendant depends upon the facts and not upon the statutory presumption. ’ ’
In the
Gentry case, subirá,
it was said:
“Several of the instructions given at defendant’s request should not have been given. As a sample, we quote the fifth instruction, viz.: ‘The court instructs the jury, for the defendant, that if they are in doubt as to whether plaintiff was injured or not in the derailment of the train, and this doubt cannot be removed by a clear preponderance of the evidence in the case, the verdict of the jury should be, “We, the jury, find for the defendant.” ’
“This instruction imposes on a plaintiff a greater burden than the law imposes on the state in a criminal trial. In a criminal trial the state must prove its case beyond all reasonable doubt. By this instruction the plaintiff must remove all doubt from the minds of the jury — and that is not all; the plaintiff must ... establish his right to recover by a preponderance of the evidence. Whenever the jury is satisfied that the plaintiff has proven his case, the plaintiff is entitled to recover. The law imposes on the plaintiff no burden to remove all doubts from the minds of the jury.”
In
Foster
v.
State, 52
Miss. 695, at page 702, the court discusses the sufficiency of evidence and what is to be considered in determining this question as applies to the possession of stolen goods, and says:
“It is always a question for the jury, applying to the solution of the problem the common experiences and 'observations of life, whether they are satisfied, from all the attending circumstances and other facts in evidence; that the possession was honest or felonious. The conduct of the accused at the time he was found in posses
sion, Ms explanation of how he came by it, his subsequent conduct, his good character, are legitimate subjects of proof, and will seldom fail to enable the jury to draw a proper deduction and conclusion. That such a rule has so long existed in the law is persuasive of its necessity and propriety.”
The instruction complained of placed too high a burden upon the defendant. We should not in every case reverse for a giving of this instruction if the evidence was overwhelming, and if we were satisfied that the jury would not, or could not, reach a reasonable conclusion other than guilt; but in a case like this, where the sole proof on the part of the state is the mere possession of the goods recently stolen, and this is balanced by the defendant’s oath that he did not know the goods were in Ms house prior to the time they were found there, makes a weak case on the facts. This is especially true where the court refused to permit the question as to what statement the defendant made to the officers when the goods were found, which he was clearly entitled to have go to the jury as a part of the evidence in the case. We cannot, of course, see whether his statement was a reasonable explanation, or whether it was sufficient to overcome the presumption flowing from the possession, and this rejection of this evidence is not assigned for error here. It, however, shows the slender thread upon which the conviction rests. The record is not sufficient on the other assignment of the rejection of the evidence as to statements made to the defendant by the persons who stole the property. It would seem that the defendant would be entitled to show by his own evidence when he first knew of the property being in his house, and •would be entitled to show his conduct after learning of such property being in the house, if he showed an effort; of reasonable character to find out how came the property there. However, we 'do not decide this question now, as on a new trial the facts may be more fully established.
The instruction requested by the defendant to counteract the instruction given for the state above referred to was inaccurate, and was therefore properly refused, as the giving of that instruction would entirely destroy the force of the presumption of guilt flowing from unexplained recent possession. The giving of the instruction for the state in this case is prejudicial error, for which the judgment of the lower court will be reversed and the case remanded for a new trial.
Reversed and remanded.